| Matter of Rotanelli v Board of Elections of WestchesterCounty |
| 2013 NY Slip Op 05657 [109 AD3d 562] |
| August 15, 2013 |
| Appellate Division, Second Department |
| In the Matter of Michael S. Rotanelli et al.,Appellants, v Board of Elections of Westchester County, Respondent and IvyReeves, Respondent. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate apetition designating Ivy Reeves as a candidate in a primary election to be held onSeptember 10, 2013, for the nomination of the Democratic Party as its candidate for thepublic office of City Council President of the City of Yonkers, the petitioners appeal, aslimited by their brief, from so much of a final order of the Supreme Court, WestchesterCounty (Connolly, J.), dated August 5, 2013, as, after a hearing, granted that branch ofIvy Reeves's motion which was to dismiss the proceeding based upon the failure tostrictly comply with the service provisions of the order to show cause, and thereupondismissed the proceeding.
Ordered that the final order is affirmed insofar as appealed from, without costs ordisbursements.
"The method of service provided for in an order to show cause is jurisdictional innature and must be strictly complied with" (Matter of Hennessey v DiCarlo, 21 AD3d 505, 505 [2005];see Matter of Nunziato vMessano, 87 AD3d 647 [2011]; Matter of Gorman v Board of Elections in the City of N.Y., 76AD3d 658 [2010]; Matterof Del Villar v Vekiarelis, 59 AD3d 642, 643 [2009]). Service within thestatutory period by means other than those authorized by the order to show cause doesnot bring a respondent within the court's jurisdiction (see Matter of Bruno vAckerson, 51 AD2d 1051 [1976]). Here, the subject order to show cause providedthat service thereof and of "the papers upon which it [was] granted" upon the candidateIvy Reeves was to be effectuated by (1) "sending the same by overnight, next-daydelivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July,2013"; "or" (2) "by personal delivery of the same to [Ivy Reeves] on or before July 23,2013, no later than 7:00 p.m." It is undisputed that the petitioners did not attempt topersonally deliver the papers to Reeves, and that copies of both the order to show causeand petition to invalidate were not delivered to Reeves's address until July 24, 2013. Thepetitioners submitted evidence that, at 9:30 p.m. on July 22, 2013, they deposited aprepaid United States Postal Service "Priority Mail Express" envelope containing thesedocuments in a mail slot located inside a publicly accessible vestibule of a post office,after the post office itself had closed. The record established that an envelope depositedat that time would not have been collected, scanned, and prepared for delivery by postalemployees until 7:00 a.m. on the following day. We agree with the Supreme Court thatthe petitioners failed to sustain their burden of establishing that the envelope was sent by"overnight, next-day delivery" on July 22, 2013 (see Matter of Stabile vDeFronzo, 231 AD2d 577 [1996]). The petitioners' submissions did not demonstratethat the envelope was deposited into the custody of the [*2]United States Postal Service prior to the latest timedesignated by that overnight delivery service for overnight delivery (cf. CPLR2103 [b] [6]). Since the petitioners failed to establish strict compliance with the serviceprovisions of the order to show cause, the Supreme Court properly granted the motion todismiss the proceeding (seeMatter of Kiernan v New York State Bd. of Elections, 95 AD3d 1242, 1243[2012]; Matter of Haggerty vQueens County Republican Comm., 92 AD3d 681 [2012]).
The petitioners' remaining contention is without merit. Balkin, J.P., Hall, Lott andMiller, JJ., concur.